ECJ on the classification of on-call time as working time

Mar 31, 2021 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) has ruled that the assessment of whether on-call time is working time or rest time requires a consideration of the individual case. It thus followed the Advocate General's opinion in the case.

In the present case, a firefighter was regularly deployed on call duty. During these duties, he had to answer emergency calls received by him and be able to reach the city limits within 20 minutes in a service car in his uniform. He applied for this on-call duty to be recognized as working time within the meaning of Directive EC 2003/88.

First, the ECJ pointed out that a worker's on-call time must be classified as either "working time" or "rest time", leaving no room for a "grey area".

On-call times are working time in their entirety if the restrictions imposed on the employee during these times interfere quite significantly with his or her ability to freely organize the time not used for work and to devote himself or herself to his or her own interests. In the opposite case, only the actual time spent professionally is "working time". However, only those restrictions on free time possibilities imposed on the employee by legal provisions, collective agreements or by the employer are to be taken into account. On the other hand, purely organizational difficulties in organizing free time, for example because the area which the worker is virtually unable to leave during the on-call period offers few leisure opportunities, is irrelevant.

In conclusion, the ECJ held that the assessment of whether it is working time or rest time must be made on a case-by-case basis. The national court must be guided in particular by the average frequency of assignments during on-call time and by whether the restrictions imposed on the employee objectively significantly impair the employee's ability to freely organize their free time.

ECJ C-580/19 (09.03.2021)